McCollum should stop defending Florida's ban on gay adoption

October 19, 2010

Florida's cruel and discriminatory law banning gays from adopting children is hanging by a thread. It's up to Attorney General Bill McCollum to wield the scissors.

In a wise and just ruling issued last month, the 3rd District Court of Appeal in Miami upheld a 2008 opinion from a Miami-Dade circuit judge who found the 1977 law unconstitutional. A three-judge panel from the appeal court said there was no evidence that gays were less fit than heterosexuals to be parents. The court also pointed out the absurd inconsistency of barring gays from adopting when Florida allows them to be foster parents.

Last week, the state Department of Children and Families announced it wouldn't appeal the ruling and wouldn't enforce the ban anywhere in Florida. Gov. Charlie Crist also said it wouldn't be enforced.

Case closed, right? Not quite.

Mr. McCollum, who represented DCF in defending the law, has not said whether he will appeal the district court ruling to the Florida Supreme Court. He faces a Thursday deadline to make up his mind.

Mr. McCollum has the authority to appeal, but it's hard to come up with a defensible rationale, legally or morally, for him to do so. A spokeswoman for the attorney general, who was unavailable Monday, said his lawyers still need to confer with DCF lawyers before he makes his final decision.

But that agency, Mr. McCollum's client in the case, has made it clear that it is done with the ban. DCF has even redesigned its adoption forms to remove questions about sexual orientation.

So if Mr. McCollum is merely representing his client — as he has insisted before when criticized for defending this unjust law — there's no good reason for him to keep playing Alfred Hitchcock and holding Florida in suspense.

Right after the district court's decision last month, some opponents of the ban said they hoped the state would appeal the case to the Supreme Court. They reasoned that the state's highest court could bury the ban once and for all with a ruling that would apply across Florida.

But DCF says its decision not to enforce the ban means the district court ruling applies statewide. Lawyers for the Miami man, Martin Gill, who challenged the ban agree that a Supreme Court appeal is not essential to end the ban in Florida.

Mr. McCollum could renew the ban if he appeals the case to the Supreme Court and persuades a majority to overturn the district court's ruling. That would be a legal long shot, considering the attorney general is already a two-time loser in this case.

Mr. McCollum hasn't exactly covered himself in glory defending the ban. At his recommendation, the state hired an anti-gay activist and paid him $120,000 to testify as an expert witness — after an Arkansas judge discredited his testimony in a similar case.

The activist, George Rekers, made headlines earlier this year when he hired a gay male escort to accompany him on a two-week European vacation. It's hard to believe Mr. McCollum wouldn't want to put this case behind him now, especially in his final three months as attorney general.

Beyond any personal reasons he might have to drop the case, Mr. McCollum has a moral obligation to let the law die. It's an affront to the very civil rights that attorneys general are charged with protecting. It's a national embarrassment, given that Florida has been the only state with an outright ban on gay adoption. It's heartless and pointless, the product of anti-gay stereotypes with no basis in fact, just ignorance.

Now that the courts have stepped in to end the ban, Mr. McCollum needs to step aside.